Lodi v. Goyette

Massachusetts Supreme Judicial Court

Lodi v. Goyette

106 N.E. 601, 219 Mass. 72, 1914 Mass. LEXIS 1494

CourtMassachusetts Supreme Judicial Court

DecidedOctober 23, 1914

StatusPublished

Cited by3 cases

This text of 106 N.E. 601 (Lodi v. Goyette) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lodi v. Goyette, 106 N.E. 601, 219 Mass. 72, 1914 Mass. LEXIS 1494 (Mass. 1914).

Pincite

Opinion

De Coijecy, J.

The plaintiff appealed from the order allowing an extension of time for presenting the bill of exceptions to the presiding judge for allowance under Rule 64 of the Superior Court. Assuming that the appeal is properly before us, it must be dismissed. An appeal raises only such questions of law as [77]*77appear by the record. There is in this record nothing to sustain the allegations of fact in the plaintiff’s motion, such as the date of filing and that of allowing the exceptions. Fay v. Upton, 153 Mass. 6.

As to the defendant’s exceptions. If the evidence would support any count in the declaration, the general finding for the plaintiff must stand. It is clear, however, that the trial judge did not make his finding on the third count, based on loss of profits, because he refused to give the sixth ruling requested which would be applicable thereto. And it must be assumed also that he did not find on the fifth count alleging the impossibility of performing the contract, because he ruled, as requested by the defendant, “that the plaintiff must prove that he was not only able but ready to perform.”

The purchase price of the property was $4,410. A payment of $100 was made on the date of the agreement, $300 were to be paid at the time of the delivery of the deed, and the balance was to remain on mortgage. As we construe the agreement, if the plaintiff was unable to procure a loan on the property from a savings bank he could give his own note and mortgage for the entire balance of $4,010. It could be found that on the last day of the option, so called, he was at the office where the papers were to be passed, with the $300, ready to carry out the terms of the agreement, and so informed the defendant by telephone; and that the defendant declined to come to the office or to carry out the contract. Upon such breach of the agreement the plaintiff became entitled to a return of the deposit money. This, with other corroborative evidence, furnishes ample support for the finding under the first count. Whether there was evidence to warrant a finding under the second and fourth counts also, need not be considered.

As to the extension of the time for carrying out the sale, it is sufficient to say that the agreement to do so was under seal, which imports a consideration. Roth v. Adams, 185 Mass. 341.

We find no error in the judge’s refusal to rule as requested.

Order appealed from affirmed.

Exceptions overruled.

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De Coijecy, J.

The plaintiff appealed from the order allowing an extension of time for presenting the bill of exceptions to the presiding judge for allowance under Rule 64 of the Superior Court. Assuming that the appeal is properly before us, it must be dismissed. An appeal raises only such questions of law as [77]*77appear by the record. There is in this record nothing to sustain the allegations of fact in the plaintiff’s motion, such as the date of filing and that of allowing the exceptions. Fay v. Upton, 153 Mass. 6.

As to the defendant’s exceptions. If the evidence would support any count in the declaration, the general finding for the plaintiff must stand. It is clear, however, that the trial judge did not make his finding on the third count, based on loss of profits, because he refused to give the sixth ruling requested which would be applicable thereto. And it must be assumed also that he did not find on the fifth count alleging the impossibility of performing the contract, because he ruled, as requested by the defendant, “that the plaintiff must prove that he was not only able but ready to perform.”

The purchase price of the property was $4,410. A payment of $100 was made on the date of the agreement, $300 were to be paid at the time of the delivery of the deed, and the balance was to remain on mortgage. As we construe the agreement, if the plaintiff was unable to procure a loan on the property from a savings bank he could give his own note and mortgage for the entire balance of $4,010. It could be found that on the last day of the option, so called, he was at the office where the papers were to be passed, with the $300, ready to carry out the terms of the agreement, and so informed the defendant by telephone; and that the defendant declined to come to the office or to carry out the contract. Upon such breach of the agreement the plaintiff became entitled to a return of the deposit money. This, with other corroborative evidence, furnishes ample support for the finding under the first count. Whether there was evidence to warrant a finding under the second and fourth counts also, need not be considered.

As to the extension of the time for carrying out the sale, it is sufficient to say that the agreement to do so was under seal, which imports a consideration. Roth v. Adams, 185 Mass. 341.

We find no error in the judge’s refusal to rule as requested.

Order appealed from affirmed.

Exceptions overruled.

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106 N.E. 601, 219 Mass. 72, 1914 Mass. LEXIS 1494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lodi-v-goyette-mass-1914.

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